Opinion
No. 36044.
February 25, 1946. Suggestion of Error Overruled March 25, 1946.
1. PROHIBITION.
A writ of prohibition is extraordinary and remedial and may issue only from a court of original jurisdiction and lies only to control an inferior court or tribunal in attempted exercise of judicial powers in excess of its jurisdiction.
2. PROHIBITION.
A writ of prohibition seeking to restrain county board of supervisors and sheriff from enforcing against petitioners an order by board forbidding sale of beer throughout county, save within municipal limits between hours of 11 p.m. Saturday until 8 a.m. Monday, was properly denied, since writ was not sought to restrain either board or sheriff from any judicial action (Code 1942, sec. 10224; Laws 1944, c. 133).
3. APPEAL AND ERROR.
Action by trial judge in vacation in denying writ of prohibition was not such "final order" as might be appealable.
APPEAL from the circuit court of Forrest county, HON. F. BURKITT COLLINS, Judge.
E.J. Currie and Dudley W. Conner, both of Hattiesburg, for appellants.
The board of supervisors on July 2, 1945, adopted, approved and published an order prohibiting the sale of light wines and beers in all territories in Forrest County, Mississippi, outside of any municipality, between the hours of 11:00 o'clock P.M. Central War Time each Saturday night until 8:00 A.M. Central War Time of the following Monday morning, and made it unlawful for any firm or corporation to sell light wine or beer, or either, in all territories in Forrest County, Mississippi, outside of any municipality between said hours. The petitioners had, prior to July 2, 1945, developed a business enterprise in Forrest County, Mississippi, at great expense, wherein they specialized in the sale of meals, and on Sunday they served meals to a large number of customers, many of whom preferred beer with their meals in lieu of other liquids. The petitioners had acquired all necessary permits and licenses for the sale of beer and had done everything necessary that would entitle them to legally and lawfully sell beer, and legally and lawfully conduct said business and from which they had earned substantial sums on Sunday from the lawful sales of such meals and beer. The place of business of the petitioners is located beyond the corporate limits of any municipality, a reasonable distance from the public highway, and there is no church or school house within several miles of said place of business. It is not located in a residential district, and the petitioners have never permitted, and do not permit, any boisterous or unseemly conduct on or about their said place of business. The petitioners were notified of the passage of said order prohibiting the sale of beer and were ordered to discontinue such sale upon penalty of criminal prosecution. Thereupon the petitioners filed a petition seeking a review of said order and a writ of prohibition with supersedeas against the board of supervisors and sheriff prohibiting them from enforcing the same and praying that said order be declared null, void and of no effect. The petition was first presented to the learned circuit judge seeking a review of the questioned order of July 2, 1945, of the board of supervisors by certiorari and the supersedeas authorized by statute. The circuit judge was of the opinion that certiorari would not lie and that prohibition was the only remedy. Whereupon, the petition under review was filed seeking in the alternate certiorari or prohibition.
It was error to refuse the writ of certiorari with supersedeas.
Crittenden v. Town of Booneville, 92 Miss. 277, 45 So. 723; Code of 1942, Secs. 1206, 1207.
The court erred in refusing to grant a writ of supersedeas pending a hearing on the writ of prohibition.
Crittenden v. Town of Booneville, supra; Code of 1942, Sec. 1657.
The court erred in sustaining the defendants' demurrer and finally dismissing the appellants' petition and in refusing to hold said order of the board of supervisors void, null and of no effect.
Alexander v. Graves, 178 Miss. 583, 173 So. 417; Ford v. Easterling et al., 183 Miss. 575, 184 So. 153; Green v. Alcorn County, 192 Miss. 468, 6 So.2d 130; Code of 1942, Sec. 10224.
Geo. W. Currie, of Hattiesburg, for appellees.
The appellants filed with the circuit clerk of Forrest County, Mississippi, a petition or declaration against the Board of supervisors of Forrest County and K.J. Grantham, sheriff, seeking a writ of certiorari or a writ of prohibition with supersedeas. The appellees filed in the circuit court a demurrer which was sustained by the circuit judge. The appellants declined to plead further and the petition was dismissed from which this appeal was prosecuted. The circuit judge was correct in sustaining the demurrer of the appellees and in dismissing the petition, and the judgment of the court below should be affirmed.
Alexander v. Graves, 178 Miss. 583, 173 So. 417; Ford v. Easterling et al., 183 Miss. 575, 184 So. 153; Green v. Alcorn County, 192 Miss. 468, 6 So.2d 130; Crittenden v. Town of Booneville, 92 Miss. 277, 45 So. 723; Code of 1942, Secs. 10207, 10208, 10211, 10223, 10224, 10228, par. (b); Laws of 1934, Ch. 171, Secs. 2, 17, 18, Ch. 127; Laws of 1944, Ch. 133, Sec. 17, par. (a); Code of 1942, Supplement, Ch. 5, Sec. 10223, par. (a).
Argued orally by Dudley W. Conner and E.J. Currie, for appellants, and by Geo. W. Currie, for appellees.
Appellants operate a restaurant or cafe outside the municipality of Hattiesburg in Forrest County in which they are licensed to sell beer. The board of supervisors, pursuant to the authority of Code 1942, Section 10224, as amended by Chapter 133 of the Laws of 1944, forbade the sale of beer throughout the county, save within municipal limits, between the hours of 11 p.m. Saturday until 8 a.m. Monday.
Appellants sought by a petition for writ of prohibition to forbid the enforcement against them of such order by the board and by the sheriff. The validity of the order is thus attacked. The order was sought to be justified by a finding that such action was taken on account of general conditions prevailing in Forrest County, including conditions incident to the war and the military effort; "it will promote the public health, morals and safety . . ." While the invalidity of an order or statute is a factor in adjudging absence of jurisdiction in a judicial officer to enforce same, the sole function of the writ is to restrain judicial action against the petitioner. The increasing tendency to seek such remedial aid in unwarranted cases admonishes us to restrain in turn the improper extention of its application. The writ of prohibition is extraordinary and remedial and may issue only from a court of original jurisdiction and lies only to control an inferior court or tribunal in the attempted exercise of judicial powers in excess of its jurisdiction. Crittenden v. Town of Booneville, 92 Miss. 277, 45 So. 723, 131 Am. St. Rep. 518; Glover v. City Council of Columbus, 132 Miss. 776, 96 So. 521; Alexander v. Graves, 178 Miss. 583, 173 So. 417; City of Greenwood v. Humphrey Co., 182 Miss. 91, 179 So. 862, 181 So. 517; Planters Ins. Co. v. Cramer, 47 Miss. 200; Wynne v. Illinois Cent. R. Co., 105 Miss. 784, 66 So. 411; Blount v. Kerley, 180 Miss. 863, 178 So. 591; Downing v. Davis, D.C. Miss., 34 F. Supp. 872; 42 Am. Jur., Prohibition, sec. 3; 50 C.J. Prohibition, secs. 1, 13.
The writ here is not sought to restrain either the board nor the sheriff from any judicial action. Neither defendant was capable of, nor undertook as such to, prosecute appellants, so that neither their jurisdiction so to do, nor the validity of the order, is involved. It was therefore proper to deny the writ.
Furthermore, the action by the judge in vacation in denying the writ was not such final order as may be appealable. Reynolds v. City of New Albany, 166 Miss. 282, 146 So. 459; State Board of Barber Examiners v. Broom, 161 Miss. 679, 137 So. 789; Woodson v. Doyle, 196 Miss. 308, 16 So.2d 852, and cases therein cited. We are bound, therefore, to dismiss the appeal.
Appeal dismissed.